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SusanX CarlsonSupreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

MONICA DIAZ BARRIGA

FIGUEROA, as parent andnatural guardian of BRAYANMARTINEZ, a minor,

Respondent,V.

CONSUELO PRIETO MARISCAL,individually and the marital propertythereof, if any.

Petitioner.

No. 95827-1

Filed M/iy 2 3 2019

Gonzalez, J—Washington law extends work product protection to

statements made by an insured to an insurer following an accident in light of the

specific parties involved and the expectations of those parties. We must decide if

that protection applies here, where the insured has gained the status of insured by

statute, rather than by contract. We hold it does. We affirm the Court of Appeals

and remand to the trial court for a new trial.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Diaz Barriga Figueroa v. Prieto Mariscal, No. 95827-1

Facts

On October 30, 2013, Consuelo Prieto Mariscal was driving her minivan in

Pasco, Washington, with her daughter. There were vehicles, including an orange ,

pickup truck and a van, on the right side of the road. As Prieto passed the orange

pickup truck, she heard a noise, felt her van jump a little, and saw a boy, Brayan,

lying on the ground. Realizing Brayan was seriously hurt, her daughter called 911.

Brayan was taken to a nearby hospital.

A police officer spoke with Prieto and her daughter but not Brayan or his

mother, Monica Diaz Baniga Figueroa. Prieto and her daughter both told the

officer they did not see how the accident happened. Although there were no other

eyewitnesses, and although the officer spoke only with Prieto and her daughter, he

wrote in the police report:

On 10/30/13 at 1456 VI was traveling S/N 400 block of North Cedar whenan 8 YOA age child on a bicycle rode into the roadway and directly in frontof VI. There were two parked vehicles on the shou[ld]er of the roadway thatcreated a blind spot for the driver of V1. When the bicyclist pulled into theroadway the rider was struck on the left side and fell to the ground. Thepassenger side front tire then drove over the child['s] right front leg. Thechild was [transported to] an area hosp[it]al via ambulance for treatment.

Clerk's Papers at 305. Brayan gave a number of statements about the accident.

Brayan's most detailed version of the accident is that his right shoelace got stuck in

the spokes of his bike and his right leg was run over when he leaned over to

untangle the shoelace.



Three weeks after the accident, Diaz went to a local law firm to seek help.

Diaz was asked to sign a blank personal injury protection (PIP) application form,

so she did. Diaz is a monolingual Spanish speaker, and the legal assistant who met

with her is a monolingual English speaker. This presigned PIP form was filled out

later by the legal assistant based on the police report. Section five of the form

asked for a brief description of the accident. Mirroring the police report, the legal

assistant wrote:

Vehicle was traveling on North Cedar when child on a bike rode into road.There were 2 parked cars on the road creating a blind[] spot for the driver.Child was struck & had right leg ran over.

Def.'s Ex. 101, at 1. In addition to seeking PIP coverage, Diaz also sued Prieto on

behalf of Brayan. The significant difference between the PIP form and Brayan's

testimony became a central issue at trial. Prieto's counsel stressed the differences

between Diaz's and Brayan's testimony and the PIP form; Diaz's counsel stressed

that the PIP form was based on accounts from people who did not see the

accident.'

During opening statements, Prieto's counsel referenced the PIP form over

Diaz's counsel's objection. After opening, out of the presence of the jury, Diaz's

' Experts for both sides testified the injuries were inconsistent with the injuries that would havebeen present had he in fact ridden his bike into the road and been struck as he was riding.During trial, Diaz testified she would not have signed the PIP form had she known what thedescription was going to be because she did not agree with it.



counsel addressed Prieto's counsel's use of the PIP form in opening and moved to

exclude any further reference to it:

Your Honor, in anticipation of today's trial, in defendant's opening hebrought up some piece of evidence that I think he might try to bring upagain.

One was a Personal Injury Protection application. . . .

It's a first-party application and privilege is not waived when yousubmit something to first-party insurance. And, in fact, first-party insuranceis not supposed to share the PIP file with defense without permission ofplaintiff.

In this case, he somehow got a copy of the PIP application. Thisraises a number of concerns. The PIP application is a no-fault insuranceapplication, meaning that the description of the accident has no bearing onwhether or not you get benefits in a PIP application.

He wants to use this PIP application as a statement against interest of[Diaz]. . . .

. . . [Because this is a privileged document,] even though he alreadyreferenced it in his opening, and I objected to it then, I would move toexclude any further reference to this Personal Injury Protection application.

1 Report of Proceedings (RP) (June 2, 2016) at 119-21. Prieto's counsel

responded:

First of all, this document is not privileged. . . . This is an application formfor Personal Injury Protection benefits for Brayan's treatment.

There is no law that the PIP application is not to be shared withdefense counsel. Plaintiff has not cited to you any authority. That'simportant to keep in mind.

The PIP insurance coverage is, in essence, a no fault benefit providedon the insurance policy insuring Ms. Prieto. Okay?



So it's her insurance company that's providing this benefit of medicalcoverage to Brayan. There is no law that certainly the plaintiff has cited thatprevents that information to be shared with me or Ms. Prieto's insurancecompany.

Id. at 121-22. The court then took a voir dire examination of Diaz to establish her

knowledge of the PIP form and who filled it out.

After voir dire, and after argument by counsel for both sides, the court

concluded:

Well, it's sort of odd this particular statement... we have a statementsigned by a party and yet, so arguably, it's a statement by the party versusthe agent speaking on her behalf, which what we have here is this statementon its face doesn't show that it was the agent.

Now, we have testimony that does show that it was an agent whospoke essentially or had the party's authority to write it, because sheessentially signed it and handed it over.

So the Court is going to find, first, that it's not a privileged document.That in redacted form, it doesn't violate the motion in limine as to collateralsource. I do find it's an admission against interest under the rule as cited.

It will be allowed and that's my ruling.

Id. at 134-35. A redacted version of the PIP application was admitted into

evidence. See Def.'s Ex. 101. Prieto's counsel then used the application to cross-

examine Diaz:

Q. And three weeks after [speaking with Brayan about the accident atthe hospital], you signed what's been admitted as Exhibit 101, with adescription of the accident. Con*ect?

A. I signed it when it was blank.

Q. Okay. And the description reads, "Vehicle was traveling on NorthCedar when child on bike rode into road. There were two parked cars on the



road, creating a blind spot for the driver. Child was struck and had right legran over."

Correct?

A. I didn't know — I didn't know about that.

Q. But that's what the description states. Correct?

A. Yes. But I guess they got that from the police report because if Iwould have loiown that they were going to write that on it, I would not havesigned it because I'm not in agreement with that.

2 RP (June 3, 2016) at 298-99. Prieto's counsel also used the application to cross-

examine Diaz's accident reconstructionist, to support Prieto's reconstructionist's

expert opinion, and, in closing argument, to question Diaz's credibility. Use of the

PIP form was extensive, and the PIP form was the primary exhibit in the case

because the police report was excluded as substantive evidence at trial as hearsay.

The jury returned a defense verdict. The Court of Appeals reversed, holding

the PIP application was work product and its admission was prejudicial, requiring a

new trial. Barriga Figueroa v. Prieto Mariscal, 3 Wn. App. 2d 139, 414 P.3d 590

(2018). We granted Prieto's petition for review and denied the issues raised by

Diaz. Barriga Figueroa V. Prieto Mariscal, 191 Wn.2d 1004, 424 P.3d 1214

(2018). Washington State Association for Justice Foundation filed an amicus brief.

Analysis

I. Quasi-fiduciary relationship

Since 1993, the State of Washington has required all insurers to offer PIP

coverage to all automobile liability policyholders. See Laws OF 1993, ch. 242.



PIP insurance is designed to provide the insured with an immediate source of

payment for out-of-pocket expenses resulting from an automobile accident. PIP

benefits are available to an insured without proof of fault, and a pedestrian injured

in an automobile accident is statutorily defined as an "insured." RCW

48.22.005(5)(b)(ii). Brayan, therefore, was an insured under Prieto's PIP

coverage. Id.; cf Matsyukv. State Farm Fire & Cas. Co., 173 Wn.2d 643, 654 n.4,

272P.3d802 (2012).

Under Washington law, insureds and insurers are in a quasi-fiduciary

relationship. See Van Nay v. State Farm Mut. Auto. Ins. Co., 142 Wn.2d 784, 793,

16 P.3d 574 (2001); Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381, 385-86,

715 P.2d 1133 (1986). This quasi-fiduciary "relationship exists not only as a result

of the contract between insurer and insured, but because of the high stakes

involved for both parties to an insurance contract and the elevated level of trust

underlying insureds' dependence on their insurers." Tank, 105 Wn.2d at 385.^

Thus the quasi-fiduciary relationship arises not only out of the contract but also out

of the type of occurrences that are covered by insurance, the high stakes of

insurance litigation, and the necessary trust and reliance that an insured places on

^ Tank held an insurer must give equal consideration" to the insured's interests as its own.Safeco Ins. Co. of Am. v. Butler, 118 Wn.2d 383, 389, 823 P.2d 499 (1992) (quoting Tank, 105Wn.2d at 385-86). Although the Tank court characterized the relationship as a fiduciaryrelationship, later case law restated the relationship as a quasi-fiduciary relationship. See VanNoy, 142 Wn.2d at 793.

7



its insurer. See Br. of Amicus Curiae Wash. State Ass'n for Justice Found, at 8

("An insurer's duty to exercise good faith is not limited to its contractual obligation

to pay benefits, but 'permeates the insurance arrangement.'" (quoting St. Paul Fire

& Marine Ins. Co. v. Onvia, Inc., 165 Wn.2d 122, 129, 196 P.3d 664 (2008))).

By making the PIP claim on the tortfeasor's insurance company, the

insurance company is also the pedestrian's insurer. RCW 48.22.005(5)(b)(ii).

Even without a contract, the PIP claimant is required to cooperate with the insurer

or risk denial of coverage.

We hold that an insurer owes a pedestrian PIP insured the same quasi-

fiduciary duties that it owes a named insured who purchases a policy. Specifically,

the '"insurer must deal fairly with an insured, giving equal consideration in all

matters to the insured's interests.'" See Van Noy, 142 Wn.2d at 794-95 (emphasis

omitted) (quoting Tank, 105 Wn.2d at 386). This approach is consistent with our

common law and the plain language of RCW 48.01.030, which requires insurers to

act in "good faith, abstain from deception, and practice honesty and equity in all

insurance matters." (Emphasis added.) With this quasi-fiduciary relationship in

mind, we turn to the work product issue.

II. Work Product

The Court of Appeals found the PIP form was protected work product. We

agree. The work product rule states:



[A] party may obtain discovery of documents and tangible things otherwisediscoverable under subsection (b)(1) of this rule and prepared in anticipationof litigation or for trial by or for another party or by or for that other party'srepresentative (including a party's attorney, consultant, surety, indemnitor,insurer, or agent) only upon a showing that the party seeking discovery hassubstantial need of the materials in the preparation of such party's case andthat the party is unable without undue hardship to obtain the substantialequivalent of the materials by other means.

CR 26(b)(4). Where the insured was the policyholder, we have held work product

protections apply. See Heidebrink v. Moriwaki, 104 Wn.2d 392, 396, 706 P.2d 212

(1985); Harris v. Drake, 152 Wn.2d 480, 490, 99 P.3d 872 (2004). Here, the

insurance relationship exists as a matter of statute, not contract. Nonetheless, we

find the overarching reasoning of Heidebrink and Harris applies because the

specific parties are in a quasi-fiduciary relationship. As such, Diaz may reasonably

expect her insurer to give equal consideration to her interests as its own and has an

expectation of confidentiality in the forms she submits.

Heidebrink is the leading case interpreting the work product rule in

Washington in the context of communications between insureds and their insurers.

104 Wn.2d at 396. We held there was a "reasonable expectation that the contents

of statements made by the insured will not be revealed to the opposing party." Id.

at 400. After a searching review of scholarship and case law in other jurisdictions,

we concluded:

[T]he better approach to the problem is to look to the specific partiesinvolved and the expectations of those parties. With these parties in mind.


Diaz Barriga Figueroa v. Frieto Mariscal, No. 95827-1

the scope of CR 26(b)(3)f^^ should provide protection when such protectioncomports with the underlying rationale of the rule to allow broad discovery,while maintaining certain restraints on badfaith, irrelevant and privilegedinquiries in order to ensure just and fair resolutions of disputes.

Id. at 399-400 (emphasis added). Therefore, in determining whether a statement is

prepared in anticipation of litigation and therefore covered under CR 26(b)(4), we

must look to the specific parties involved and the expectations of those parties, the

rationale for the rule, and the need to restrain bad faith and intrusion into privileged

materials. See also Harris, 152 Wn.2d at 489 (jHeidebrink examination

of the relationship of the parties in each case.").

Subsequently, in Harris, we applied Heidebrink and held that work product

protection applied to an insured's independent medical examination performed at

the request of the PIP insurer, based on the specific parties and their expectations.

Id. at 490-91. In doing so, the Harris court carefully scrutinized the parties'

relationship—emphasizing that "the relationship between an insured and his or her

insurer is sometimes adversarial, while at other times the interest of the insured and

insurer are aligned. This dual relationship requires close examination, evaluating

the specific positions of the insurer and insured in each instance." Id. at 489.

Analyzing the specific parties and their expectations here, as we must under

Heidebrink and Harris, we emphasize there is a dual relationship between Diaz

^ The rule was renumbered to CR 26(b)(4) in 1990. For ease of reading, we refer to the currentnumbers. See Harris, 152 Wn.2d at 486 n.l.

10



and Brayan and their insurer. As a tort plaintiff against the named insured, Diaz

and Brayan's relationship with the insurer is adversarial. As a pedestrian PIP

insured, they are in a quasi-fiduciary relationship with the insurer."^ As such, Diaz

and Brayan reasonably expect their insurer to deal fairly with them and give equal

consideration in all matters to their interests.

Further, as Brayan's parent and natural guardian, Diaz went to a law firm for

legal assistance. As part of providing that legal assistance, the law firm sent a PIP

application form to the parties' shared insurance company. Diaz did not fill out the

forms herself, and it cannot be seriously contended that she sought legal assistance

merely to have help filling out forms—Prieto ran over her eight-year-old son's leg,

seriously injuring him. That no lawsuit had been filed when Diaz prepared

Brayan's PIP application is of no consequence; Diaz plainly signed the fonn in

anticipation of litigation, in a lawyer's office, with assistance from the law firm

ultimately suing Prieto. Indeed, in Heidebrink, we stated that had the statements

been "made directly to the [insurance company's] selected attorney, it would

We respectfully disagree with the dissent's statement that "PIP claims are, by nature,nonadversariai." Dissent at 4. This characterization belies human experience and our case law.See Harris, 152 Wn.2d at 488. In recognition of both the inherent conflict and the quasi-fiduciary relationship between the parties, the information obligated to be provided by theinsured when seeking PIP benefits is presumptively confidential. E.g., id. at 490. It is often theinsurer who will assert work product privilege against an adversary in litigation or theadversary's liability carrier. E.g., id. at 491-92. This was the case in Harris, where the insurerasserted the privilege as the insured's representative. Id. Here, of course, Diaz asserted theprivilege directly, and the reasoning in Harris supported her doing so.

11



obviously have been made in anticipation of litigation." 104 Wn.2d at 400. The

statements were made in anticipation of litigation. Thus, we hold work product

protections apply.

III. Prejudice

Having concluded it was error for the trial court to hold the document was

not protected, we must next determine whether the trial court's error was of

sufficient magnitude to necessitate a new trial. Prieto argues there is no prejudice

because the evidence was cumulative and admission of cumulative evidence is

harmless.

When a trial court makes an erroneous evidentiary ruling, the question on

appeal becomes whether the error was prejudicial, for error without prejudice is not

grounds for reversal. Driggs v. Howlett, 193 Wn. App. 875, 903, 371 P.3d 61

(2016) (citing Brown v. Spokane County Fire Prof. Dist. No. 1, 100 Wn.2d 188,

196, 668 P.2d 571 (1983)). Error will be considered prejudicial if it presumptively

affects the outcome of the trial. James S. Black & Co. v. P&R Co., 12 Wn. App.

533, 537, 530 P.2d 722 (1975). Improper admission of evidence constitutes

harmless error if the evidence is cumulative. Hoskins v. Reich, 142 Wn. App. 557,

570, 174P.3d 1250 (2008).

Prieto argues the evidence is cumulative because the statement as to how the

accident happened, as stated in the PIP application, was cumulative of the trial

12


Diaz Barriga Figueroa v. Prielo Mariscal, No. 95827-1

testimony of Diaz's own accident reconstruction expert. Prieto argues, "Before the

PIP application was admitted, the expert testified as to Brayan's 'explanation of

how he rode that day, prior to being hit.' Therefore, the record at trial contains

undisputed evidence that Brayan himself told his expert he rode into the street prior

to being hit." Suppl. Br. of Pet'r at 19 (quoting 1 RP (June 2, 2016) at 167). We

are not persuaded by this characterization of the evidence.

Prieto is correct that the expert stated Brayan rode in the street "prior to

being hit," i.e., earlier that day, but that is not at issue. 1 RP (June 2, 2016) at 167.

At issue is what happened immediately before Brayan was hit. Regarding that

issue, the PIP form says "child on a bike rode into road" and due to a blind spot

"was struck," which Prieto used to attack Diaz's version of the events. Def.'s Ex.

101, at 1 (emphasis added). Diaz said immediately before being hit Brayan was

not riding, he was leaned over untangling his shoelace. The PIP form was not

cumulative as Diaz's evidence strikingly differed.

Admission of the PIP form prejudiced Diaz.^ It was used extensively by

Prieto's counsel throughout trial. It was used in opening; it was used to cross-

^ The dissent contends the PIP form "was not important to the issue before the jury." Dissent at5. The importance of the PIP form cannot be understated because it went to the issue of liability,which was the central issue in this case. It is unclear how much weight the jury gave to the PIPform in coming to its determination that Prieto was not negligent. See Driggs, 193 Wn. App. at903 ("When the reviewing court is unable to know what value the jury placed on the improperlyadmitted evidence, a new trial is necessary." (citing Thomas v. French, 99 Wn.2d 95, 105, 659P.2d 1097 (1983))).

13



examine Diaz and Diaz's accident reconstructionist; it was used to form opinions

of the accident by an accident reconstructionist retained on behalf of Prieto; and it

was used in closing argument to question Diaz's credibility. Further, when

Prieto's counsel used the PIP form, he almost always emphasized the fact that it

was signed by Diaz, thereby attributing the statements to her. Diaz did not make

these statements; the legal assistant filled out the PIP form based on the police

report. Crucially, the speculative statements in the police report were hearsay and

the police report was inadmissible at trial for this reason.

Prieto's counsel repeatedly claimed throughout trial that Brayan was hit after

he rode his bicycle between two parked cars and into the road. Prieto asserts

Diaz's accident reconstructionist's testimony supports this claim but, as discussed

above, it does not—^the PIP form served as the basis for the claim, and the PIP

form was therefore not cumulative. The trial court en'oneously admitted the PIP

form, and its admission prejudiced Diaz.

Conclusion

The PIP form was work product in light of the specific parties and their

expectations, and its admission prejudiced Diaz. We affirm the Court of Appeals

and remand for a new trial.

14



WE CONCUR:

/A /

15


Barriga Figueroa v. Prieto Mariscal

No. 95827-1

JOHNSON, J. (dissenting)—The work product doctrine is meant to serve as

a narrow exception to otherwise broad discovery and is confined to materials that

are prepared in anticipation of litigation. Our cases have established that in the

insurance context, a determination of whether this protection applies requires that

the court conduct a fact-specific inquiry looking at the "specific parties involved

and the expectations of those parties." Heidebrink v. Moriwaki, 104 Wn.2d 392,

400, 706 P.2d 212 (1985). We reiterated this factual analysis in Harris v. Drake,

where the relationship between the insurer and insured was of particular

importance, and we observed that the relationship "requires close examination,

evaluating the specific positions of the insurer and insured in each instance." 152

Wn.2d 480, 489, 99 P.3d 872 (2004). The majority acknowledges the fact-specific

nature of this inquiry but then ignores it and proceeds to apply work product

protection to a personal injury protection (PIP) application form where no factual

basis exists to support doing so. Furthermore, even assuming the trial court

committed error by admitting the application form, the form was not material to

the jury's determination or prejudicial to the plaintiff, and only by selectively

mischaracterizing the record does the majority conclude otherwise.


No. 95827-1

(Johnson, J., dissenting)

While CR 26(b)(4) protects from discovery "documents and tangible things .

. . prepared in anticipation of litigation or for trial," this protection is not absolute.

In Heidebrink, we acknowledged the particular difficulty in the insurance context

of determining whether materials were prepared in anticipation of litigation

because litigation is part of the ordinary course of business when dealing with

insurance claims. The parties in that case urged adoption of rules governing work

product protection in insurance matters that ranged from affording protection only

to materials prepared by an attorney to very broad protection of all materials

prepared in any insurance investigation. We stated that although the cases

presented by the parties were "on point," we believed it would be ''inappropriate

to subscribe entirely to the rationale of either set of cases." Heidebrink, 104 Wn.2d

at 399 (emphasis added). We instead established our case-by-case, fact-specific

analysis and held that courts employing it should seek to comport with the

underlying rationale of CR 26(b)(4), allowing broad discovery while maintaining

certain restraints on bad faith, irrelevant, and privileged inquiries. In other words,

courts should avoid applying work product protections except where necessary "to

ensure just and fair resolutions of disputes." Heidebrink, 104 Wn.2d at 400.

The majority recognizes that Heidebrink is the controlling case here and

purports to engage in an analysis of these parties and their expectations. However,

despite a record that is devoid of any indication the plaintiff, Monica Diaz Barriga


No. 95827-1


Figueroa,' anticipated litigation, the majority determines work product protection

should apply to her PIP application form. What is in the record regarding the

application is: (a) it was for no-fault insurance, which here requires no assertion of

liability and is, therefore, nonadversarial, (b) Diaz signed it while it was blank, (c)

it was completed and submitted before a complaint had been filed against the

alleged at-fault driver, Prieto, and (d) a law office helped complete it, including

filling in the accident description, using the description from the police report.

What is not in the record is any indication that Diaz or her attorney felt this

document might be utilized in a lawsuit.

The majority asserts that "it cannot be seriously contended" that Diaz

"sought legal assistance merely to have help filling out forms" and then concludes

that she signed the PIP application in anticipation of litigation. Majority at 11. But

there is nothing in the record to support such a finding; it is pure speculation by the

majority. The majority also relies on the "dual relationship" between Diaz and the

insurer, arguing that "[a]s a tort plaintiff against the named insured, Diaz and

Brayan's relationship with the insurer is adversarial." Majority at 10. This

argument ignores that we should be focusing on the expectations of the parties at

the time the PIP application was prepared. At that time, no lawsuit had been filed;

' For the sake of consistency, we follow the majority's lead in referring to the respondentas Diaz and the petitioner driver, Consuelo Prieto Mariscal, as Prieto.


No. 95827-1


therefore, the majority's assertion that Diaz was an adversarial tort plaintiff is

wrong.

As we indicated in Harris, the relationship between an insured and an

insurer is complicated. This relationship "is sometimes adversarial, while at other

times the interests of the insured and insurer are aligned," thus, the need for "close

examination." Harris, 152 Wn.2d at 489. Such an examination here reveals no

indication of an adversarial relationship between Diaz and the insurer at the time

she completed the application form. Only two conditions must exist to qualify for

PIP benefits: (1) that a person meets the definition of an "insured" and (2) that a

motor vehicle accident occurred that caused the person injury. Because fault plays

no factor in coverage, PIP claims are, by nature, nonadversarial.

The record simply does not indicate that Diaz anticipated litigation when she

signed the PIP application; it indicates only that she employed an attorney who

assisted her with filing a PIP claim. By extending work product protections to this

application, the majority seemingly, but without expressly stating so, abandons our

fact-specific analysis in favor of broad protection for any materials prepared in the

insurance context. If we properly apply what our prior cases established and

recognize the underlying policy of CR 26(b)(4) favoring broad discovery, work

product protections do not apply here.


No. 95827-1


But even if we were inclined to find that work product protection extended

to the PIP application form and it was error to use it at trial, error without prejudice

is not grounds for reversing the jury verdict. Brown v. Spokane County Fire Prof.

Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983). For an error to be

prejudicial, it must be determined that "within reasonable probabilities, the

outcome of the trial would have been materially affected had the error not

occurred." State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981).^ The majority

asserts that the PIP application was prejudicial for two reasons: (1) because it was

used by defense counsel to impeach both Diaz and her accident reconstruction

expert, Patrick Stadler, and (2) because the PIP form served as the basis for

defense counsel's assertion that Diaz's son, Brayan, rode into the road. In doing so,

the majority ignores the record, failing to acknowledge that the PIP application

form was not important to the issue before the jury, was not the only evidence in

front of the jury, and was not the only means by which defense counsel impeached

Diaz and Stadler.

During cross-examination of Diaz, defense counsel sought to impeach her

testimony on multiple points and overwhelmingly did so using statements other

^ The majority cites Driggs v. Howlett, 193 Wn. App. 875, 903, 371 P.3d 61 (2016), forthe proposition that a new trial is required anytime a reviewing court is unable to determine whatvalue a jury may have placed on improperly admitted evidence. Majority at 13 n.4. But theDriggs court derived this rule from cases involving hearsay evidence that should have beenadmitted only for a limited purpose. This rule has no applicability here.


No. 95827-1


than those in the PIP application. See, e.g., 2 Report of Proceedings (RP) (June 2,

2016) at 283-86 (using Diaz's earlier deposition testimony to impeach her

inconsistent testimony regarding how Brayan was positioned when she arrived at

the scene); 2 RP (June 3, 2016) at 299-303 (using the initial complaint to impeach

Diaz's description of Brayan's conduct leading up to the accident), 304 (using

Diaz's deposition testimony to impeach her description of Brayan's conduct

leading up to the accident). As to the majority's assertion that the application was

used by defense counsel to impeach Stadler, this is entirely unsupported by the

record. The application was first brought up during redirect by plaintiffs counsel,

and defense counsel questioned him on recross as to whether the description on the

application was consistent with the idea that Brayan had been in a blind spot and

with the description given in the police report. However, while this form was not

used to impeach Stadler, defense counsel did impeach him through other means.

See 1 RP (June 2, 2016) at 165-69 (impeaching Stadler using a diagram he drew

that was consistent with the defense counsel's theory of the accident), 169-71

(using Stadler's deposition testimony to impeach his assertion that he had not

considered the defense's theory of the accident), 171-72 (using Stadler's deposition

testimony to impeach him after he avoided answering whether the defense's theory

could result in Brayan's injuries).


No. 95827-1


Significantly, defense counsel illustrated the differing accounts of how the

accident occurred using deposition testimony from both Diaz and Stadler, as well

as the initial complaint. The majority mischaracterizes the entirety of the trial

records by asserting that only the PIP application supported the defense's theory of

how the accident occurred. Majority at 14. The PIP application was arguably

cumulative both as a means of impeachment and as a means of establishing the

defense's theory.

It is highly unlikely the jury considered the PIP application form convincing

as substantive evidence. At trial, when defense counsel sought to impeach Diaz

with the application, she countered by testifying that she signed the application

when it was blank and would not have done so if she had known her attorney

would use the description from the police report. During recross, Stadler described

the accident description in the application and the police report as inconsistent with

the physical evidence. Finally, during rebuttal, an employee of Diaz's attorney

testified and explained that he, not Diaz, had inserted the description of the

accident. Despite all of the evidence and testimony, the majority never explains,

and cannot explain, how the de minimis use of the prior inconsistent statement in

the PIP application form, made by a nonwitness to the accident, could have

possibly had a material effect on the jury's decision.


No. 95827-1


The Court of Appeals should be reversed.

Gy,/6

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